FROM BUTTS TO BIG MACS—CAN THE BIG
TOBACCO LITIGATION AND NATION-WIDE
SETTLEMENT WITH STATES’ ATTORNEYS
GENERAL SERVE AS A MODEL FOR ATTACKING
THE FAST FOOD INDUSTRY?
John J. Zefutie, Jr.∗
INTRODUCTION
In 1998, after decades of litigation, the major tobacco
1
companies negotiated a settlement reimbursing the Medicare
expenses that forty-six states incurred to treat citizens suffering from
2
the adverse effects of smoking. This settlement, as well as its
preceding litigation, introduced a new method through which
unpopular industries could be persuaded, if not forced, to change
their business practices as well as garner impressive fees for attorneys.
Robert Reich, former Secretary of Labor under President Clinton,
best termed this new era of attacking unpopular industries as
3
“regulation through litigation.” That is, the plaintiffs’ bar, perhaps
∗
J.D. 2004, Seton Hall University Law School; B.A. 2000, Saint Joseph’s
University.
1
Hereinafter referred to as “Big Tobacco,” a common phrase for the major
tobacco companies. These include American Brands, Inc.; R.J. Reynolds Tobacco
Company; Brown & Williamson Tobacco Corporation; Batus, Inc.; Philip Morris
Companies, Inc.; Lorillard Tobacco Company, Inc.; Loews Corporation; United
States Tobacco Company; and Liggett Group, Inc. See infra Part I.
2
See A New Tobacco Deal, N.Y. TIMES, Nov. 22, 1998, § 4, at 2 (stating that 46 states
settled with tobacco companies for $206 billion). For purposes of this Comment,
adverse effects include lung cancer, throat cancer, mouth cancer, emphysema, and
heart disease. Mississippi, Florida, Texas, and Minnesota reached their own
respective settlements. W. Kip Viscusi, Tobacco: Regulations and Taxation Through
Litigation, in REGULATION THROUGH LITIGATION 46 (W. Kip Viscusi ed., 2002). The
tobacco industry settled with Mississippi for $3.5 billion, Texas for $15.3 billion,
Florida for $11.3 billion, and Minnesota for $6.6 billion. Id. For complete details of
each state settlement, see http://www.stic. neu.edu (last visited Mar. 10, 2004).
3
Robert Reich, Regulation is Out, Litigation is In, USA TODAY, Feb. 11, 1999, at
15A. W. Kip Viscusi questions this approach. See Viscusi, supra note 2, at 23. In his
view, taxation, rather than litigation, would bring about a more appropriate and
efficient reform. See id. at 30. The difficulty, however, is that such a tax would be
regressive and may reduce demand. Id. Under Viscusi’s economic analysis of
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motivated by the profitability of settlement, targets industries such as
4
5
6
asbestos manufacturers, Big Tobacco, HMOs, lead paint
7
8
manufacturers, and gun manufacturers through litigation to
compensate consumers and end harmful business practices and
production. Because of the massive amount of attorney’s fees
available in these lawsuits, plaintiffs’ attorneys have become the new
9
10
“watch dogs” for the American consumer. Fast food companies are
the latest targets of plaintiffs’ attorneys who hope to change the
industry’s practices of food preparation, marketing, and packaging of
products. In addition, they also may hope to garner impressive fees
that will equip them with the necessary resources to wage war against
other industries.
11
On July 23, 2002, Caesar Barber filed a class action suit against
the nation’s major fast food companies, McDonald’s Corporation,
Burger King Corporation, KFC Corporation, and Wendy’s
International Corporation, alleging their foods were responsible for
tobacco regulation, such a reduction in demand would be counterproductive. Id.
4
See, e.g., Amechem Prods., Inc. v. Windsor, 521 U.S. 591 (1997).
5
See infra Part I.
6
See, e.g., In re Managed Care Litig., 150 F. Supp. 2d 1330 (S.D. Fla. 2001).
7
See, e.g., Brenner v. Am. Cyanimid Co., 699 N.Y.S.2d 848 (App. Div. 1999).
8
See, e.g., Hamilton v. Accu-tek, 935 F. Supp. 1307 (E.D.N.Y. 1996).
9
Joseph Nocera, First, Who’s Running This Country, Anyway? We, the Lawyers,
FORTUNE, Nov. 8, 1999, at 38-39. Not only have lawyers attacked the fast food
industry, the film industry is launching its own attack. Morgan Spurlock produced,
directed, and starred in a documentary about the effects of eating fast food. SUPER
SIZE ME (Morgan Spurlock and The Con 2004). In the film, Spurlock eats exclusively
at McDonald’s for one month and documents the health effects he suffered. See
http://www.supersizeme.com/ home.aspx?page=aboutmovie (last visited Mar. 5,
2004).
10
For purposes of this Comment, “fast food companies” include the McDonald’s
Corporation, Burger King Corporation, KFC Corporation, d/b/a Kentucky Fried
Chicken, and Wendy’s International Corporation. These are the parties named in
the pending class action lawsuit filed in the Bronx, NY. For a complete copy of the
Barber’s
complaint
[hereinafter
Barber
Compl.],
see
http://banzhaf.net/docs/nyccomp.html (last visited Mar. 5, 2004).
11
Mr. Barber is a resident of the Bronx in his late fifties suffering from various
health conditions he claims resulted from his steady diet of foods marketed by the
fast food industry. See supra note 10. He claims he did not realize that fast food
products were unhealthy. Barber Compl. at ¶ 41. Recent contacts with attorney
Samuel Hirsch revealed that he ceased pursuing the Barber class action, awaiting a
ruling on a class action he filed against the fast food giants on behalf of obese
children. E-mail from Samuel Hirsch, Managing Partner, Samuel Hirsch and
Associates, to John Zefutie, J.D. Candidate, Seton Hall University Law School (Jan.
16, 2003, 13:29 EST) (on file with author). That subsequent action was dismissed.
See Pelman v. McDonald’s Corp., No. CIV 02-7821, 2003 WL 22052778 (S.D.N.Y. Sept.
3, 2003) [hereinafter Pelman II]. Nonetheless, his complaint serves as a model for
the type of claims plaintiffs’ attorneys will bring against fast food companies both
now and in the future. See supra note 10.
2004
COMMENT
1385
12
his related health problems. This suit was one of two class actions
filed in New York against these companies; the other class action was
13
14
dismissed in January of 2003. In Pelman v. McDonald’s Corp., a class
of obese teenagers brought suit against these same defendants
alleging, inter alia, that defendants’ failure to warn consumers of its
food content contributed to their obesity and subsequent health
15
problems. Although the court held that the facts alleged in the
16
complaint did not adequately specify a cause of action, the court
17
granted plaintiff’s motion to amend. The district court reasoned,
“one necessary element of any potentially viable claim must be that
McDonalds’ products involve a danger that is not within the common
knowledge of consumers”; an element the original complaint failed
18
to specify.
Mr. Barber suffers from a variety of health problems including
19
high blood pressure and heart disease, which obesity may cause.
Relying on a recent study released by the United States Surgeon
General, Mr. Barber alleged the fast food industry’s business practices
contribute to the increasing overweight/obesity epidemic in the
20
United States. He claimed he was not aware that fast food products
21
were unhealthy, and alleged negligent food preparation, failure to
22
warn of the adverse health effects of eating fast food, failure to post
12
Barber Compl., supra note 10, at ¶ 1.
See Pelman v. McDonald’s Corp., 237 F. Supp. 2d 512 (S.D.N.Y. 2003)
[hereinafter Pelman I]. On January 22, 2003, Federal District Judge Robert Sweet for
the District of New York dismissed the class action filed on behalf of all obese
children. Id. He did not, however, dismiss the case as frivolous. Id. Rather, the
judge stated that the arguments plaintiffs allege would be more compelling if they
were explored in greater depth. Id. at 543. He allowed plaintiffs thirty days to
amend their complaint to establish that the dangers of fast food were not commonly
known, thus giving rise to a duty to warn on the part of McDonald’s. Id. (citing
Foman v. Davis, 371 U.S. 178 (1962)). Shortly after, on February 19, 2003, plaintiffs
filed an amended complaint. Pelman II, 2003 WL 22052778, at *1; see also infra Part
II E. The court, after analyzing plaintiffs’ allegations under the New York Consumer
Fraud Statute, granted McDonald’s Corporation’s motion to dismiss. Pelman II, 2003
WL 22052778, at *15 (citing N.Y. GEN. BUS. LAW §§ 349, 350 (Consol. 1999)).
14
237 F. Supp. 2d 512 (S.D.N.Y. 2003).
15
See id.
16
Id. at 543.
17
Id.; see also FED. R. CIV. P. 15(a) (requiring that “leave [to amend] shall be
freely given when justice so requires”).
18
Pelman I, 237 F. Supp. 2d at 518.
19
Barber Compl., supra note 10, at 17 (citing U.S. DEP’T. OF HEALTH & HUMAN
SERV. THE SURGEON GENERAL’S CALL TO ACTION TO PREVENT AND DECREASE
OVERWEIGHT AND OBESITY (2001)).
20
Id. ¶ 3.
21
Barber Compl., supra note 10, at ¶ 41.
22
Adverse health effects in the fast food context include coronary heart disease,
13
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SETON HALL LAW REVIEW
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nutritional facts, and violation of New York’s Consumer Protection
23
Act. The complaint further contended that the defendant fast food
companies were responsible for his medical problems, as well as his
24
ignorance that fast food is an unhealthy product.
Legal and media commentators alike analogize this suit to Big
25
Tobacco litigation and state attorney general settlement.
It is
evident that this suit was inspired, in part, by the success of the Big
Tobacco litigation and settlement, but the question still remains: Will
the litigation tactics used in suits against Big Tobacco serve as an
instructive model for fast food litigation? This Comment explores
that question and proposes that while there are some similarities
between fast food and Big Tobacco claims, essential elements that
brought Big Tobacco to the negotiating table are missing.
Part I outlines the development of the Big Tobacco litigation, as
well as the nation-wide settlement between Big Tobacco and states’
attorneys general. Part II discusses the fast food industry and how its
practices could potentially give rise to a cause of action within the tort
litigation context. It also summarizes the current “obesity epidemic”
and how the fast food industry may or may not have contributed to
that epidemic. Part III offers suggestions as to how those bringing
actions against the fast food industry can learn from the Big Tobacco
settlement.
Fast food litigation is looking to compensate individuals for
alleged unfair practices by the fast food industry. Plaintiffs, however,
26
face formidable obstacles.
First, plaintiffs’ attorneys seeking to
attack the fast food industry on the bases of negligence or failure to
warn will have difficulty in establishing causation. Second, neither
type 2 diabetes, high blood pressure, gallbladder disease, and elevated cholesterol
levels. See id. at ¶ 3; see also Aviva Must et al., The Disease Burden Associated With
Overweight and Obesity, 282 JAMA 1523 (1999).
23
Barber Compl., supra note 10, ¶ 35-56.
24
Id. ¶ 1.
25
See, e.g., Anthony J. Sebok, The “Big Fat” Class Action Lawsuit Against Fast Food
Companies: Is It More Than Just A Stunt?, at http://writ.news.findlaw.com/sebok/
200220814.html. (2002) (on file with author); see also Cindi Ross, Warning: Super-Size
Fries Make You Fat, Suing Over It Makes You A Jerk, THE STATE, Aug. 13, 2002.
26
In fact, the United States House of Representatives just recently passed the
“Cheeseburger Bill,” a law barring lawsuits brought against fast food companies. Liza
Porteus & Brian Wilson, House Passes ‘Cheeseburger Bill’ (Mar. 10, 2004), at
http://www.foxnews.com/story/0,2933,113836,00.html. The bill is officially entitled
the “Personal Responsibility in Food Consumption Act.” Id. The law prohibits
actions by consumers who eat great quantities of fast food. Id. The bill does not,
however, prohibit suits rooted in theories of mislabeling or tainting food products.
Id. For a complete copy of the proposed bill, see http://thomas.loc.gov/cgibin/query/D?c108:2:./temp/ ~c108ZmMMWv:: (last visited Mar. 10, 2004).
2004
COMMENT
1387
the scientific community, nor plaintiffs’ attorneys, have offered
conclusive evidence that fast food is addictive, that the industry
manipulated any supposed addictive qualities, that the industry knew
of the food’s addictive qualities, and that the industry subsequently
misled consumers regarding that fact. If such evidence existed,
plaintiffs’ attorneys would have a considerable advantage. Absent
fraud, however, their task is quite difficult. Third, plaintiffs’ attorneys
do not, as of yet, have the assistance of states’ attorneys general.
PART I—LITIGATION AND SETTLEMENT: A DISCUSSION OF
THE BIG TOBACCO LITIGATION AND ATTORNEY GENERAL
SETTLEMENT
A. The First and Second Waves
27
Scholars categorize the Big Tobacco litigation into three waves.
28
The “First Wave” occurred between the years of 1954 and 1973.
During this period, plaintiffs’ attorneys brought suit under theories
29
of negligence, breach of express and implied warranty, and deceit.
The litigation in this era followed the lung cancer scare in the early
1950s when scientists first released laboratory research linking
30
smoking to cancer in mice. The problem facing attorneys, however,
was causation. During the First Wave, technology was obsolete, and,
thus, plaintiffs could not establish any correlation between smoking
31
and cancer in humans. The tobacco companies adopted and clung
to the “constitutional hypothesis” offered by biologist Clarence Cook
32
Little. Little argued that many factors contributed to cancer, and no
33
one cause, especially smoking, could bear the blame. Specifically,
he argued that a damaged or defective gene was the most likely cause
34
of cancer.
27
See Robert L. Rabin, A Sociolegal History of the Tobacco Tort Litigation, 88 STAN. L.
REV. 853 (1992); Peter Pringle, The Chronicles of Tobacco: An Account of the Forces that
Brought the Tobacco Industry to the Negotiating Table, 25 WM. MITCHELL L. REV. 387
(1999); Bryce A. Jensen, From Tobacco to Healthcare and Beyond—A Critique of Lawsuits
Targeting Unpopular Industries, 86 CORNELL L. REV. 1334 (2001).
28
Pringle, supra note 27, at 389.
29
Graham E. Kelder & Richard A. Daynar, The Role of Litigation in the Effective
Control of the Sales and Use of Tobacco, 8 STAN. L. & POL’Y REV. 63, 71 (1997).
30
Pringle, supra note 27, at 389.
31
Id.
32
PETER PRINGLE, CORNERED, BIG TOBACCO AT THE BAR OF JUSTICE 114 (1998).
33
Id.
34
Id.; see also STANTON A. GLANTZ ET AL., THE CIGARETTE PAPERS 350 (1996). Sir
Ronald Fisher developed the constitutional hypothesis. Id. He argued as well that
certain people were pre-disposed to developing lung cancer. Id.
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Courts were forced to dismiss most, if not all, of the claims filed
35
in the 1950s, 60s, and 70s because of lack of scientific evidence.
Plaintiffs’ attorneys were able to overcome this hurdle in the “Second
36
Wave” of tobacco litigation. Between 1983 and 1992, smokers were
37
able to establish a causal link between smoking and lung cancer. In
addition, plaintiffs’ attorneys were offering new theories of liability
such as strict liability, “overpromotion,” and breach of express
38
warranty. Big Tobacco, however, was able to ward off attacks by
39
embracing an assumption of risk defense. According to the tobacco
industry, plaintiffs knew of the dangers of smoking when they
consumed cigarettes because they had been adequately warned,
40
pursuant to statutory mandate.
In 1965, Congress passed the
41
Federal Cigarette Labeling and Advertising Act, which specified in
42
great detail the appropriate phrasing of warnings, requirements for
43
44
outdoor billboards, and appropriate size fonts of each warning.
35
See, e.g., Green v. Am. Tobacco Co., 409 F.2d 1166 (5th Cir. 1969); Hudson v.
R.J. Reynolds Tobacco Co., 427 F.2d 541 (5th Cir. 1970); Lartigue v. R. J. Reynolds
Tobacco Co., 317 F.2d 19 (5th Cir. 1963); Scott v. Hernon, 278 N.E.2d 259 (Ill. App.
Ct. 1971); see also Pringle, see supra note 27, at 389.
36
Pringle, see supra note 27, at 389.
37
Id.
38
Marc Z. Edell, Cigarette Litigation: The Second Wave, 22 TORT & INS. L.J. 90, 93-96
(1986).
39
See, e.g., Pennington v. Visitron Corp., 876 F.2d 414 (5th Cir. 1989) (holding
that a wife of a cigarette smoker was not entitled to recover under a failure to warn
theory absent a causal connection); Gilboy v. Am. Tobacco Co., 572 So. 2d 289 (La.
Ct. App. 1990) (holding that plaintiffs could not recover for illness allegedly caused
by cigarettes due to widespread knowledge of the detrimental effects of smoking);
Brisboy v. Fibreboard Corp., 418 N.W.2d 650 (Mich. 1988) (holding that the risk of
developing cancer fell within the risk assumed by a smoker); Dewey v. Brown &
Williamson Tobacco Corp., 542 A.2d 919 (N.J. Super. Ct. App. Div. 1988) (holding,
inter alia, that plaintiff’s claim for failure to warn was preempted by the Federal
Cigarette Labeling and Advertising Act); see also Pringle, supra note 27, at 389;
Davenport v. Cotton Hope Plantation Horizontal Prop. Regime, 508 S.E.2d 565 (S.C.
1998) (stating the elements of assumption of risk: “(1) the plaintiff must have
knowledge of the facts constituting a dangerous condition; (2) the plaintiff must
know the condition is dangerous; (3) the plaintiff must appreciate the nature and
extent of the danger; and (4) the plaintiff must voluntarily expose himself to the
danger. . . .”) (emphasis added).
40
See PRINGLE, supra note 32, at 114.
41
15 U.S.C. § 1333 (2000).
42
§ 1333(a)(1). This section provides for four different warnings. Id. These
warnings are preceded by the phrase, “Surgeon General’s Warning.” Id. The
warnings prescribed are as follows: “Smoking Causes Lung Cancer, Heart Disease,
Emphysema, And May Complicate Pregnancy; Quitting Smoking Now Greatly
Reduces Serious Risks to Your Health; Smoking By Pregnant Women May Result in
Fetal Injury, Premature Birth, And Low Birth Weight; Cigarette Smoke Contains
Carbon Monoxide.” Id.
43
§ 1333(a)(3). This section provides that similar warnings described in supra
2004
COMMENT
1389
Armed with the statute, Big Tobacco repeatedly won cases asserting
that the smoker knew that the habit was dangerous and voluntarily
45
chose to smoke knowing the risks.
B. Class Action Certification and de-Certification: Barnes, Castano,
and the “Sons of Castano”
Since lawsuits in the “Second Wave” failed to bring about any
significant change in the manufacturing, marketing, and sale of
cigarettes, plaintiffs’ attorneys made use of the class action in an
attempt to shift the jury’s focus from the guilty plaintiff to a
commonality of harm imposed by Big Tobacco’s products – namely
46
cigarettes. The first of these cases was Castano v. American Tobacco
47
Co. Plaintiffs brought their class action in the United States District
48
Court for the Eastern District of Louisiana. The class included “all
nicotine dependent persons in the United States, its territories and
possessions and the Commonwealth of Puerto Rico who have
purchased and smoked cigarettes manufactured by the tobacco
49
50
companies,” which included approximately 40 million claimants.
In Castano, the district court found that the requirements of
51
Rule 23(a) of the Federal Rules of Civil Procedure were satisfied.
note 42 apply to outdoor billboards. Id.
44
Section 1333(b)(1) reads:
The phrase ‘Surgeon General’s Warning’ shall appear in capital letters
and the size of all other letters in the label shall be the same as the size
of such letters as of October 12, 1984. All the letters in the label shall
appear in conspicuous and legible type in the contrast by typography,
layout, or color with all other printed material on the package.
Id.
45
See Lartigue v. R.J. Reynolds Tobacco Co., 317 F.2d 19 (5th Cir. 1963); Ross v.
Philip Morris & Co., Ltd., 328 F.2d 3 (8th Cir. 1964); Dewey v. R. J. Reynolds
Tobacco Co., 577 A.2d 1239 (N.J. 1990); see also Pringle, supra note 27, at 392.
46
Richard L. Antogini, New U.S. Tort Litigation: To Go Warily Where No One Has
Gone Before: Courts Now Are Being Used by Plaintiff’s Counsel to Change Industry-Wide
Practices, To Enforce Self-Regulation and to Extract Large Punitive Damages Awards, 67 DEF.
COUNS. J. 454, 459 (2000).
47
160 F.R.D. 544 (E.D. La. 1995), rev’d, 84 F.3d 734 (5th Cir. 1996).
48
Castano, 160 F.R.D. at 544.
49
Id. at 549.
50
Id. at 550; see also Robert L. Rabin, The Tobacco Litigation: A Tentative Assessment,
51 DEPAUL L. REV. 331, 333 (2001). Rabin also argues that this certification fit nicely
with the plaintiffs’ claim that tobacco executives engaged in a pattern of conduct that
concealed nicotine’s addictive quality. Id.
51
Castano, 160 F.R.D. at 550-51; see also FED. R. CIV. P. 23(a) (stating in relevant
part that one can sue on behalf of others if: the class is so numerous making joinder of
all of the members impracticable, there are common questions of law or fact to the
class, the claims and/or defenses of the class representative are typical of those of the
entire class, and “the representative parties will fairly and adequately protect” the class’
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SETON HALL LAW REVIEW
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Though the court denied plaintiff’s motion for class certification
52
based on Rule 23(b)(2), it granted certification based on Rule
53
23(b)(3), finding that common issues of law and fact predominated
the class. The district court held that the various state consumer
protection statutes did not differ significantly as to preclude class
54
certification.
On appeal, the Fifth Circuit overturned the district court’s
55
holding. It held that the lower court erred in two ways in granting
56
class certification. First, the district court did not consider variations
in state consumer protection laws that could affect the predominance
57
requirement. Second, the lower court’s “predominance inquiry did
not include consideration of how a trial on the merits would be
58
Furthermore, the court of appeals held that class
conducted.”
certification would have placed an undue burden on the tobacco
companies because certification would lead to a flood of
59
“unmeritorious claims.”
60
In Barnes v. American Tobacco Co., the Third Circuit Court of
Appeals overturned another class action on similar grounds. The
court found that “addiction, causation, the defenses of comparative
and contributory negligence, the need for medical monitoring and
the statute of limitations present too many individual issues to permit
61
certification.” The court placed particular emphasis on the issue of
62
addiction. It reasoned that addiction was the main component of
causation in these sorts of class actions: “[a]ddiction remains an
interest) (emphasis added).
52
Castano, 160 F.R.D. at 551-52; see also FED. R. CIV. P. 23(b)(2) (allowing a
certification for a class that requests only equitable relief). The plaintiffs in Castano,
however, requested legal relief as well. Id.
53
Castano, 160 F.R.D. at 554-56; see also FED. R. CIV. P. 23(b)(3) (stating in
relevant part that the court should grant class certification if it finds “that the
questions of law or fact common to the members of the class predominate over any
questions affecting only individual members, and that a class action is superior to
other available methods for the fair and efficient adjudication of the controversy”).
54
Castano, 160 F.R.D. at 554.
55
Castano v. Am. Tobacco Co., 84 F.3d 734 (5th Cir. 1996).
56
Id. at 740.
57
Id.
58
Id.
59
Id. at 746 (citing In re “Agent Orange” Prod. Liab. Litig., 818 F.2d 145, 165 (2d
Cir. 1987)). The court reasoned: “In the context of mass tort class actions,
certification dramatically affects the stakes for defendants. Class certification
magnifies and strengthens the number of unmeritorious claims.” Id.
60
161 F.3d 127 (3d Cir. 1998).
61
Id. at 143.
62
Id. at 144.
2004
COMMENT
1391
essential part of plaintiff’s claim. In order to prevail on their medical
monitoring claim—under any of their three theories of liability
(negligence, strict products liability and intentional exposure to a
hazardous substance)—plaintiffs must demonstrate defendants caused
63
their exposure to tobacco.”
Barnes is indicative of how courts struck down class actions filed
in federal court. It was the Castano decision, however, that caused the
64
plaintiffs’ bar to refocus their efforts in state court. Its strategy was
to flood local state courts with class actions wherein the class
members were state residents who were suffering from the adverse
65
effects of smoking.
Massachusetts Congressman Martin Meehan
66
termed these cases as the “sons of Castano.” Since many of these
claims are in the midst of litigation or have been dismissed, it is
difficult to assess whether this was an effective strategy.
One case, however, suggested that this was a sound plan of
67
attack. In Engle v. R.J. Reynolds, a Florida superior court judge
68
granted class certification. After the court affirmed certification, the
jury found that Big Tobacco engaged in deceptive conduct, that a
causal relation existed between smoking and the diseases the class
69
suffered, and that punitive damages were appropriate.
The jury
then awarded $12.7 million in compensatory damages and $144.8
70
billion in punitive damages. The Florida Appellate Court, however,
71
overturned this award in Liggett Group, Inc. v. Engle.
In Liggett, the court held, first, that the smokers’ claims were too
“uniquely individualized” to satisfy the predominance and superiority
63
Id.
See Pringle, supra note 27, at 395.
65
Id.
66
Anthony Flint, Court Derails Class-Action Tobacco Suit, BOSTON GLOBE, May 24,
1996 at 1. See, e.g., State v. Am. Tobacco Co., 772 So. 2d 417 (Ala. 2000); Daniels v.
Philip Morris Co., Inc., 18 F. Supp. 2d 110 (S.D. Cal. 1998); Connecticut v. Philip
Morris, Inc., No. X02 CV 960148414S, 1998 WL 800274 (Conn. Super. Ct. Oct. 27,
1998); People v. Philip Morris, Inc., 759 N.E.2d 906 (Ill. 2001); State ex rel. Miller v.
R.J. Reynolds Tobacco Co., 577 N.W.2d 401 (Iowa 1998); Scott v. Am. Tobacco Co.,
725 So. 2d 10 (La. Ct. App. 1998); State v. Philip Morris, Inc., No. 96122017,
CL211487, 1997 WL 540913 (Md. Ct. Spec. App. May 21, 1997); Massachusetts v.
Philip Morris, Inc., No. 957378J, 1998 WL 1181992 (Mass. Super. Mar. 20, 1998); Ren
v. Philip Morris, Inc., No. 00-004035-CZ, 2002 WL 1839983 (Mich. Cir. Ct. June 11,
2002); Walls v. Am. Tobacco Co., 11 P.3d 626 (Okla. 2000).
67
2000 WL 33534572 (Fla. Dist. Ct. App. Nov. 6, 2000), rev’d, Liggett Group, Inc.
v. Engle, 853 So. 2d 434 (Fla. Dist. Ct. App. 2003).
68
Engle, 2000 WL 3353472, at *31.
69
Id.
70
Id.
71
853 So. 2d 434 (Fla. Dist. Ct. App. 2003).
64
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72
requirements the Florida class action rule requires. Second, the
court took issue with the lower court’s award of class-wide punitive
damages before making any finding as to liability of or among the
73
defendants. Such an approach, the court reasoned, violated Florida
law in that there was no method of determining whether there was a
rational relationship between the liability imposed and the punitive
74
damages awarded.
Also, the punitive damages award was so
excessive that it violated both federal and state law and would
75
bankrupt the defendants. Finally, the court held that the attorney
general’s settlement with Big Tobacco barred any claims brought by
76
these plaintiffs.
The failure of Castano and the general ineffectiveness of the
“sons of Castano” compelled plaintiffs’ attorneys and other antismoking interest groups to develop a new strategy to regulate tobacco
through the courtroom—thus, the “Third Wave.”
C. The Third Wave—Attorneys General Join the Fray
The “Third Wave” ushered in a new theory of recovery. In a new
tactic, state attorneys general brought suit on behalf of the states to
recover Medicare costs incurred to treat individuals suffering from
77
tobacco-related illnesses.
Michael Moore, Attorney General for
78
Mississippi, was the creator of this strategy. The idea was to treat Big
Tobacco like any other enterprise that hurts consumers through its
72
Id. at 444 (citing FL. CT. C.P.R. 1.220). According to the court, allowing
certification of a class with significant individual issues would be unjust and
unmanageable. Id. at 445. Furthermore, the court required “each claimant . . . to
prove that his or her illness not only was caused by the smoking, but was also
proximately caused by defendants’ alleged misconduct.” Id. at 446.
73
Id. at 450. This “cart before the horse” award of punitive damages violated
well-established Florida law, which requires that the defendant “be found liable
before any punishment is imposed.” Id. at 451 (citing Ault v. Lohr, 598 So. 2d 454,
457 (Fla. 1989) (Ehrlich, C.J., concurring)).
74
Liggett, 853 So. 2d at 451 (citations omitted). “Without this prior assessment it
is impossible to determine whether punitive damages bear a ‘reasonable’
relationship to the actual harm inflicted on the plaintiff . . . .” Id.
75
Id. at 456 (citing Arab Termite & Pest Control of Florida, Inc. v. Jenkins, 409
So. 2d 1039, 1043 (Fla. 1982); Cooper Indus., Inc. v. Leatherman Tool Group, Inc.,
532 U.S. 424 (2001)).
76
Liggett, 853 So. 2d at 467. The court stated that “Florida settled and released its
claims in 1997, by entering into the Florida Settlement Agreement . . . which
resolved with finality all of Florida’s claims, ‘including those for punitive damages.’”
Id. at 467-68; see also supra note 2.
77
See cases cited infra note 83.
78
See Henry Weinstein, Tobacco Industry Target of Taxpayer Suits Smoking: Litigants
in 2 Massive Cases Want Federal Government Reimbursed for Health Care Costs, L.A. TIMES,
Oct. 17, 1997, at D3.
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COMMENT
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79
products. In essence, the attorneys general attacked Big Tobacco as
if they were companies who used asbestos or dumped toxic waste,
80
forcing them to clean up the mess. This proved advantageous for
two reasons. First, Big Tobacco was no longer an insurmountable
81
defendant when faced with the resources of the state. Second, the
states were viewed as innocent third parties; thus, Big Tobacco could
82
not effectively use the assumption of risk defense. The attorneys
general of Minnesota, Florida, and West Virginia soon followed
83
Mississippi’s lead and filed suit in their respective state courts.
One important component of the “Third Wave” was that the suit
84
85
was not a section 402A products liability claim.
The parties
involved were the state and the tobacco manufacturers, rather than
86
the consumers and tobacco manufacturers. Another crucial factor
of the Third Wave is that attorneys general hired plaintiffs’ attorneys
87
to bring suits on behalf of the states.
As such, the plaintiffs’ bar
began to pool their resources and coordinate their efforts. Scholars
argue that the combination of state-forged Medicare recovery actions
and the centralization of plaintiffs’ attorneys’ resources shifted the
79
PRINGLE, supra note 32, at 7.
Id.
81
Howard M. Erichson, The End of the Defendant Advantage in the Tobacco Litigation,
26 WM. & MARY ENVTL. L. & POL’Y REV. 123, 132 (2001).
82
Id.; see also supra note 39.
83
See Florida v. Am. Tobacco Co., No. CIV-95-1446 (Fla. 15th Jud. Cir. 1995); Am.
Tobacco Co. v. State, 697 So. 2d 1246 (Fla. Dist. Ct. App. 1997); Group Health Plan,
Inc. v. Philip Morris Inc., et al., 621 N.W.2d 2 (Minn. 2001); State v. Philip Morris
Inc., 551 N.W.2d 490 (Minn. 1996); Ludke v. Philip Morris Co., Inc., No. MC 001954, 2001 WL 1673791 (Minn. Dist. Ct. Nov. 21, 2001); McGraw v. Am. Tobacco
Co., No. 94-C-1707, 1995 WL 569618 (W. Va. Cir. Ct. June 6, 1995); see also PRINGLE,
supra note 32, at 7 (1998); Viscusi, supra note 2, at 42.
84
RESTATEMENT (SECOND) OF TORTS § 402A (1965). Section 402A provides in
pertinent part:
(1) One who sells any product in a defective condition unreasonably
dangerous to the user or consumer or to his property is subject to
liability for physical harm thereby caused to the ultimate user or
consumer, or to his property, if (a) the seller is engaged in the business
of selling such a product, and (b) it is expected to and does reach the
user or consumer without substantial change in the condition in which
it is sold.
(2) The rule of subsection (1) applies although (a) the seller has
exercised all possible care in the preparation and sale of his product,
and (b) the user or consumer has not bought the product from or
entered into any contractual relation with the seller.
Id.
85
Panel Discussion, The Tobacco Industry Settlement: Practical Implications and the
Future of Tort Law, 67 MISS. L.J. 847, 870 (1998).
86
Id. at 870.
87
Erichson, supra note 81, at 130.
80
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balance of power from Big Tobacco, and its seemingly unlimited
88
resources, to plaintiffs—both states and smokers.
Two other important factors in the Third Wave were issues of
causation. First, the courts recognized the link between smoking and
risks to one’s health in the 1990s. Specifically, attorneys in the Third
Wave relied heavily on the 1962 Surgeon General’s Report that
smoking was indeed related to lung cancer in both men and
89
women.
This report, however, failed to establish a causal link
90
Second,
between smoking and chronic bronchitis/emphysema.
economic effects of smoking began to make themselves apparent in
the Third Wave. Plaintiffs’ attorneys, on behalf of the state,
emphasized that smoking cost the nation approximately $100 billion
dollars per year—$50 billion in doctors fees, drugs, hospital bills, etc.,
91
and $50 billion in lost working hours and income taxes. The Third
Wave proved to be the key to regulating Big Tobacco and its
practices. The intervention of state attorneys general and the
assistance of the plaintiffs’ bar led to discovery of key documents and
inside information integral to Big Tobacco’s defeat.
D. Fraud and Settlement
Generally, the attorneys general in the Third Wave hoped to use
the courtroom as a forum to expose the tobacco industry’s business
practices and the detrimental effects of smoking. In other words,
though people chose to smoke, they did not know of the harmful
92
effects of cigarettes or the addictive quality of nicotine.
The
93
existence of fraud on the part of Big Tobacco, however, was the key
factor in the settlement between tobacco companies and the forty-six
94
Attorneys general and the plaintiffs’ bar were able to
states.
88
Id. at 131.
PRINGLE, supra note 32, at 135-36 (citing the 1962 Surgeon General’s Report).
The report states in relevant part: “Cigarette smoking is causally related to lung
cancer in men; the magnitude and effect of cigarette smoking far outweighs all other
factors. The data for women, though less extensive, points in the same direction.”
Id.
90
Id. at 135-36 (citing the 1962 Surgeon General’s Report).
91
See David Greising & Linda Himelstein, Does Tobacco Pay Its Way?, BUS. WK.,
Feb. 19, 1996.
92
Panel Discussion, supra note 85, at 870.
93
See Johnson v. Davis, 480 So. 2d 625 (Fla. 1985) (stating elements of common
law fraud: “(1) a false statement concerning a material fact; (2) the representor’s
knowledge that the representation is false; (3) an intention that the representation
induce another to rely on it; and (4) consequent injury by the party acting in
reliance on the representation”).
94
Mississippi, Minnesota, Florida, and West Virginia were not part of the
settlement since they filed and settled separate actions on behalf of the citizens in
89
2004
COMMENT
1395
establish fraud through two principal actions of Big Tobacco –
95
namely whistle-blowers and attorney-client privilege.
Whistle-blowers are a relatively new phenomenon in mass tort
96
litigation. They have proved especially useful in litigation targeting
an unpopular industry. In the 1960s and 1970s, for example, whistleblowers were instrumental in cases involving chemical dumping,
97
asbestos diseases, and unsafe drugs. Like the “muckrakers” of the
industrial revolution, whistle-blowers were often labeled as “left wing
98
trouble-makers.”
Merrell Williams was the first of such whistle99
blowers in the tobacco litigation. He served as a paralegal for the
100
law firm representing Brown and Williamson.
During his time
there, he had photocopied hundreds, if not thousands, of documents
showing that Brown and Williamson knew of the addictive qualities of
101
tobacco.
Williams’ activity proved to be problematic for Big
Tobacco for two reasons.
First, because attorneys general could now prove nicotine was
102
addictive, their allegations of fraud became stronger. Furthermore,
seven tobacco CEOs testified before a congressional committee
formed to investigate the detrimental health effects of smoking,
103
claiming they did not believe nicotine was addictive.
Their
testimony made Big Tobacco’s position even less credible. Second,
because the documents demonstrated nicotine’s addictiveness, Big
Tobacco could no longer assert that smokers voluntarily “chose” to
104
smoke.
Furthermore, Williams provided attorneys general and the
plaintiffs’ bar with documentation showing that attorneys took part in
105
many of Big Tobacco’s cover-ups.
With each document Williams
provided, the charge of fraud resounded with even more resonance.
their respective states. See supra note 2.
95
PRINGLE, supra note 32, at 57.
96
Id.
97
Id.
98
Id.
99
Id.
100
Id. at 60.
101
CARRICK MOLLENKAPM ET AL., THE PEOPLE V. BIG TOBACCO: HOW THE STATES
TOOK ON THE CIGARETTE GIANTS 38 (1998). Williams also provided memoranda
requesting scientific documents be filtered through Brown and Williamson’s
attorneys so as to give them appearance of being prepared in anticipation of
litigation. Id. at 132.
102
PRINGLE, supra note 32, at 60.
103
Id. at 78-81.
104
Id. at 68.
105
Id.
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Big Tobacco’s lawyers had set up a secret fund “enabling them to
sponsor, and monitor, tobacco research that would be especially
useful in defending liability suits. They also suggested ways that
scientific reports could be censored to remove facts embarrassing to
106
the industry.” Attorneys for Big Tobacco also took the time to label
“sensitive research documents” as privileged or work product in an
107
attempt to shield them from public release.
108
Known as the
Jeffrey Wigand was another key whistle-blower.
ultimate insider, Wigand, head of Research and Development for
Brown and Williamson, breached his confidentiality agreement with
the company and disclosed that Big Tobacco was aware of the
109
addictive quality of nicotine. Because the company was aware of its
product’s effect on smokers, they manipulated nicotine levels to keep
110
their “customers” coming back.
In other words, Brown and
Williamson, as well as the other Big Tobacco giants, knew of the
health risks of smoking and took affirmative steps to keep smokers
111
hooked. Wigand demonstrated that:
[a] large number of chemicals end up in cigarette tobacco
besides the ones that come naturally in the tobacco plant. They
include not only the residue of pesticides and insecticides, but
also compounds added as flavorings in the factory. Still more are
112
produced by the burning of tobacco.
The final whistle-blower was Bennett LeBow, a Big Tobacco
113
CEO.
As part of a settlement with the attorneys general and the
plaintiffs’ bar, LeBow, CEO of the Liggett Group, admitted that he
knew nicotine was addictive and that the other companies also knew
114
as much.
LeBow was the first CEO to admit that he and Big
115
This
Tobacco knew nicotine was addictive and caused cancer.
effectively brought an end to Big Tobacco’s defense that it was not
aware of nicotine’s addictive quality. LeBow was willing to negotiate a
106
Id. at 60.
Id. at 154; see also supra note 101.
108
PRINGLE, supra note 32, at 178. Touchstone Pictures presented a feature film
about Jeffrey Wigand and the CBS 60 Minutes presentation of the information he
had about Brown and Williamson’s fraud. See THE INSIDER (Touchstone Pictures
1998).
109
PRINGLE, see supra note 32, at 179.
110
See id. at 182.
111
Id.
112
Id. at 181.
113
Id. at 227.
114
Glen Collins, Tobacco’s Broken Line; A Dealer’s Boldest Play May Reshape the Game,
N.Y. TIMES, Mar. 14, 1996, at A1.
115
PRINGLE, supra note 32, at 229.
107
2004
COMMENT
1397
settlement between the plaintiffs’ bar (namely the attorneys involved
116
with Castano) and his company, the Liggett Group. The settlement
itself, however, never reached fruition because its terms required
certification of the Castano class action. Nevertheless, plaintiffs and
the attorneys general obtained a sworn statement from a Big Tobacco
CEO affirming that the industry knew nicotine was addictive, and that
it used that information to its advantage.
Because the evidence of fraud was indisputable, settlement
became the tobacco industry’s most attractive option. In February of
1998, the industry settled for a total amount of $368.5 billion:
$10 billion in the first year, of which $7 billion would go to the
states and $3 billion to the federal Department of Health and
Human Services to fund a smoking cessation campaign, enforce a
ban of sales to minors, and set up a compensation fund for
smokers who win court cases. Thereafter the industry would pay
117
$8.5 billion rising to $15 billion annually in perpetuity.
The $368.5 billion would suffice for the first twenty-five years of
118
the settlement.
Finally, the industry settled attorneys’ fees at
119
approximately $8 billion. This settlement sent a message not only
to Big Tobacco, but also to other unpopular industries. Litigation
proved to be an effective tool to regulate companies that caused
direct and indirect harm to the American populace. In addition, the
monetary rewards that accompanied settlement encouraged
plaintiffs’ attorneys to initiate similar actions against other industries.
One of the overarching questions the Big Tobacco battle left open
was: Who was next?
PART II—FAST FOOD: THE NEXT STEP?
A. The Complaint
Against the backdrop of the Big Tobacco litigation and the state
settlement, fast food has become the next target of the plaintiffs’ bar.
In his complaint, Caesar Barber named popular fast food chains such
120
as McDonald’s, Burger King, Wendy’s, and KFC as defendants.
Perhaps borrowing from the claims brought against Big Tobacco,
Barber alleged that the fast food industry’s business practices led to
116
Id. at 228.
For a complete copy of the Master Settlement Agreement (“MSA”), see
http://stic.neu.edu/settlement/6-20-settle.htm.
118
Id.
119
Id.
120
Barber Compl., supra note 10, at ¶ 1.
117
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his health problems, which, in turn, had direct and indirect negative
121
socio-economic effects. Direct effects included “healthcare costs for
122
preventive, diagnostic, and treatment services related to obesity.”
Indirect effects included “the value of wages lost by individuals who
are unable to work because of illness or disability, as well as the value
123
of earnings lost by premature death.” Barber’s focus on these socioeconomic effects is significant because he was most likely attempting
to gain the attention of states’ attorneys general. If plaintiffs are able
to show an effective link between high fat, salt, and cholesterol
content in fast food and the costs of health care, that connection
could encourage states’ attorneys general to initiate suits against fast
food companies.
124
Barber has brought this lawsuit as a class action.
As such, he
was hoping to sue on behalf of all Americans suffering from the
adverse health effects allegedly caused by consuming fast food. The
common issues raised in the complaint were whether the defendants’
products caused, exacerbated, or induced overweight, obesity, and
other health effects, whether the defendants knew of these harmful
125
effects, and whether the defendants adequately warned consumers.
In addition to stating that the requirements for a class action were
126
satisfied, Barber alleged that millions of Americans would be
127
128
The
affected by this lawsuit, thus making joinder impracticable.
use of the class action in this context is significant not only because it
joins parties who share common issues, but also because it is a vehicle
129
to bring about settlement quickly, offering global resolution.
As
such, the class action has become, and was utilized as, another
weapon in the arsenal of the plaintiffs’ bar.
Barber brought several causes of action in his complaint. First,
he alleged that the defendants’ agents, servants, and/or employees
“negligently, recklessly, carelessly and/or intentionally engaged in
distribution, ownership, retail, manufacture, sale, marketing and/or
121
Id. at ¶ 23.
Id.
123
Id.
124
Id. at ¶ 25-34; see also supra notes 51-53.
125
Barber Compl., supra note 10, at ¶ 28.
126
See supra notes 51-53.
127
“Joinder” refers to multiple plaintiffs suing together if their asserted claims
arise “out of the same transaction, occurrence, or series of transactions or
occurrences and if any question of law or fact common to all these persons will arise
in the action.” FED R. CIV. P. 20(a).
128
Barber Compl., supra note 10, at ¶ 26.
129
See Erichson, supra note 81 (citing Richard A. Nagareda, Punitive Damage Class
Actions and the Baseline of Tort, 36 WAKE FOREST L. REV. 943, 944 (2001)).
122
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COMMENT
1399
production of food products that are high in fat, salt, sugar and
130
cholesterol.” Barber also tailored an action under a failure to warn
131
132
theory. In his complaint, he asserted that “the defendants failed
to warn and/or adequately warn the users and consumers of the
aforesaid food products of the quantity and levels of fat, salt, sugar,
133
and cholesterol content . . . .” The third cause of action alleged the
134
fast food industry’s failure to post nutritional facts. Barber claimed
135
the defendants failed “to label and/or adequately label, represent,
warn or properly account to the users and consumers of nutritional
values, including but not limited to, the quantities and qualities of fat,
salt, sugar and cholesterol content, of their respective food
136
products.”
Finally, Barber alleged a violation of New York’s
137
Consumer Fraud Statute. The pleading stated:
defendants engaged in unfair and deceptive acts and practices, in
violation of the consumer fraud statutes and provisions of the
New York Consumer Fraud Act by failing to adequately disclose
the health effects of ingestion of certain respective food products
with high levels of fat salt, sugar, and cholesterol content, which
have or can be shown to cause obesity, diabetes, coronary heart
disease, high blood pressure, elevated cholesterol intake, related
138
cancers, and/or other detrimental and adverse health effects.
Barber sought compensatory damages, injunctive relief requiring
defendants to label their products, funding of an educational
139
program for children, and attorney’s fees and costs.
B. Intentional/Negligent Preparation?
Fast food has become a common staple of American culture.
130
140
Barber Compl., supra note 10, at ¶ 36.
Id. at ¶ 40.
132
See supra note 10.
133
Barber Compl., supra note 10, at ¶ 40.
134
Id. at ¶ 49.
135
See supra note 10.
136
Barber Compl., supra note 10, at ¶ 49.
137
N.Y. GEN. BUS. LAW §§ 349, 350 (Consol. 1999).
138
Barber Compl., supra note 10, at ¶ 54 (internal citations omitted).
139
Id. at ¶ 57.
140
See ERIC SCHLOSSER, FAST FOOD NATION 70 (2002).
Americans spend
approximately $110 billion on fast food. Id. at 3.
The McDonald’s Corporation has become a powerful symbol of
America’s service economy, which is now responsible for 90 percent of
the country’s new jobs. In 1968, McDonald’s operated about one
thousand restaurants. Today it has about thirty thousand restaurants
worldwide and opens almost two thousand . . . each year. An estimated
one of every eight workers in the United States has at some point been
131
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The crux of any claim for negligence or intentional tort resides in the
fast food industry’s policies of food preparation. Many fast food
companies have established a “zero training” policy to reduce the cost
141
of training employees. In effect, this policy is intended to simplify
142
the equipment and processes used in food preparation.
It also
allows employees of a fast food restaurant little latitude to abuse or
143
commit error in the food preparation process. Such a policy could
benefit plaintiffs’ attorneys. First, it would show that fast food
executives want to maintain a certain level of control over the
operations of its franchises. Second, the court may view a “zero
training” policy as a breach of “reasonable care” in any negligence
action for obesity, and the adverse health effects that stem from
144
obesity, or for simply inadequately training employees.
The fast food industry has also engaged in several practices that
courts could deem intentional. The Chicken McNugget is one of the
145
most popular products marketed by the McDonald’s corporation.
Introduced to the market in 1983, the McNugget proved to be a
146
success among American consumers.
Harvard researchers,
however, uncovered that the Chicken McNugget was more “beef
147
extract” than chicken. Shortly after this study, McDonald’s altered
employed by McDonald’s. The company annually hires about one
million people, more than any other American organization, public or
private. McDonald’s is the nation’s largest purchaser of beef, pork,
potatoes – and the second largest purchaser of chickens.
Id. at 4.
141
Id. at 72. Burger King Corporation, the McDonald’s Corporation, and Tricon
Global Restaurants (owner of Taco Bell, Pizza Hut, and KFC) implemented this
policy. Id. at 71-72.
142
Id. “The management no longer depends upon the talents or skills of its
workers—those things are built into the operating system and machines.” Id. at 70.
143
Id. at 72.
144
See Brown v. Kendall, 60 Mass. (1 Cush.) 292, 296 (1850). “In general, it
[reasonable care] means that kind and degree of care, which prudent and cautious
men would use, such as is required by the exigency of the case, and such as is
necessary to guard against probable danger.” Id. Courts recognize causes of action
for negligent hiring and supervision of employees. See Miller v. Wal-Mart Stores, Inc.,
580 N.W.2d 233, 261 (Wis. 1998) (stating that there is a duty to properly hire, train,
and supervise employees); see also M.L. v. Magnuson, 531 N.W.2d 849 (Minn. Ct.
App. 1995); Castillo v. Gared, Inc., 1 S.W.3d 781 (Tex. Ct. App. 1999).
145
SCHLOSSER, supra note 140, at 139-40.
146
Id. at 140.
147
Id.
A chemical analysis of McNuggets by a researcher at Harvard Medical
School found that their “fatty acid profile” more closely resembled beef
than poultry. They were cooked in beef tallow, like McDonald’s fries.
The chain soon switched to vegetable oil, adding “beef extract” to
McNuggets during the manufacturing process in order to retain their
2004
COMMENT
1401
its preparation formula for the McNugget, and replaced the “beef
148
This change was intentional so as to
extract” with vegetable oil.
149
reduce the product’s level of fat content.
In addition to the
chicken, a Chicken McNugget is comprised of:
water, salt, modified corn starch, sodium phosphates, chicken
broth powder (chicken broth, salt and natural flavoring (chicken
source)), seasoning (vegetable oil extracts of rosemary, mono, di
– and triglycerides, lecithin). Battered and breaded with water,
enriched bleached wheat flour (niacin, iron, thiamine,
mononitrate, riboflavin, folic acid), yellow corn flour, bleached
wheat flour, modified corn starch, salt, leavening (baking soda,
sodium acid pyrophosphate, sodium aluminum phosphate,
monocalcium phosphate, calcium lactate), spices, wheat starch,
dried whey, corn starch. Batter is set in vegetable shortening.
Cooked in partially hydrogenated vegetable oil, (may contain
partially
hydrogenated soybean oils
and/or
partially
hydrogenated corn oil and/or partially hydrogenated canola oil
and/or cottonseed oil and/or corn oil). TBHQ and citric acid
added to help preserve freshness. Dimethylpolysiloxane added as
150
an anti-foaming agent.
In other words, the “old” Chicken McNugget contains levels of
saturated fat and chemical additives most consumers would not
expect to find in a “chicken” nugget. Plaintiff’s attorneys view such a
process of food preparation as overly processed to the point of being
151
dangerous to one’s health.
Similarly, almost all Americans are aware of the familiar sales
pitch, “Would you like to super-size that?” What many consumers
may not realize is that they are consuming approximately 50% more
152
calories by super-sizing their meal.
In essence, the fast food
familiar taste. Today Chicken McNuggets are wildly popular among
young children – and contain twice as much fat per ounce as a
hamburger.
Id.
148
Id.; see also infra note 246. Indeed, McDonald’s has launched new advertising
campaigns promoting its “new all white meat nuggets.” Associated Press, McDonald’s
to Introduce All White-Meat Nuggets (Oct.
8, 2003), available at
http://dailybeacon.utk.edu/ article.php/11995. These new and improved nuggets,
however, still contain 250 calories and 15 grams of fat in every six-piece serving.
Nicci Micco, The New Fast Food: Health or Hype? SELF, Mar. 2004, at 146. This is only a
slight departure from McDonald’s old McNugget, which contained 310 calories and
20 grams of fat. Id.
149
See infra note 246.
150
Pelman I, 237 F. Supp. 2d at 535 (citing McDonald’s ingredient list).
151
Id.
152
See Maggie Fox, Jumbo-Sized Junk Food, June 18, 2002, at
http://www.cbsnews.com/stories/2002/06/18/health/main512649.shtml. “It costs
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industry is encouraging its customers to consume more calories by
153
offering them at a cheaper price.
In addition to the direct acts of both fast food executives and
local franchises, the meat packing industry may share some of the
blame for the spread of diseases related to consuming processed
154
meat. This industry efficiently supplies McDonald’s and other fast
155
food enterprises with most, if not all, of its ground beef.
Researchers, specifically the Centers for Disease Control and
Prevention, estimate that more than three-quarters of food-related
156
diseases originate in the food processing/meatpacking process.
Furthermore, through effective lobbying to Congress, the
meatpacking industry has managed to avoid the same liability posed
157
on other manufacturers of consumer products. Thus, “[t]oday the
U.S. government can demand the nationwide recall of defective
softball bats, sneakers, stuffed animals, and foam-rubber toy cows.
But it cannot order a meatpacking company to remove
contaminated, potentially lethal ground beef from fast food kitchens
158
and supermarket shelves.”
These facts offer several alternatives for plaintiffs’ attorneys.
First, they can make a separate claim against the meatpacking
industry for its practices. However, the strong lobbying in which the
meatpacking industry engages is a significant problem. Second, they
could argue that a causal link exists between the practices of the
meatpacking industry and the fast food industry’s policy of buying its
meat mainly from these manufacturers. This argument, however,
gives rise to various legal principles of agency that are beyond the
eight cents more to purchase McDonald’s Quarter Pounder with Cheese, small
French fries and a small Coke (890 calories) separately than to buy the Quarter
Pounder with Cheese large Extra Value Meal, which comes with a large fries and a
large Coke (1,380 calories).” Id.
153
Id. McDonald’s, however, has now decided to suspend its super size policy.
Associated Press, Say Goodbye To Those Super-Size Fries – McDonald’s Is Slimming Down Its
Menu, available at http://www.foxnews.com/story/0,2933,113105,00.htm. (Mar. 2,
2004) (on file with author). McDonald’s spokesperson, Walt Riker, said that the
company will no longer super-size its meal choices come the end of 2004. Id. While
health and a well-balanced diet are concerns, the main reason for this change,
according to Riker, is to simplify the menu for both consumers and workers. Id.
Richard Adams, an independent franchising consultant also says this policy will help
improve McDonald’s service and increase work crew efficiency. Id.; see also supra
notes 141-43.
154
SCHLOSSER, supra note 140, at 196.
155
Id. at 196.
156
Id.
157
Id.
158
Id.
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COMMENT
1403
scope of this Comment. Furthermore, if the meatpacking industry
can avoid liability, it is unlikely that plaintiffs’ attorneys would find
victory against the fast food industry.
C. Failure to Warn?
Barber’s cause of action for failure to warn takes its cue from
legislation passed in 1965 regarding the placement of warning labels
159
on cigarette packages.
A failure to warn claim is rooted in
160
traditional negligence principles.
The Restatement (Third) of
Torts: Products Liability states that a product is defective “because of
inadequate instructions or warnings when the foreseeable risks of
harm posed by the product could have been reduced or avoided by
the provision of reasonable instructions or warnings by the seller or
161
Thus, the overarching question is whether Barber
distributor.”
and/or other potential plaintiffs could have avoided the potential
health risks that fast food may or may not have caused. As explained
below, this is a weak argument.
Several facts illustrate that the fast food industry should be
required to place nutritional facts on their products. For example,
most, if not all, consumers do not realize what a typical strawberry
162
milkshake contains.
A Burger King strawberry shake contains the
following:
amyl acetate, amyl butyrate, amyl valerate, anethol, anisyl formate,
benzyl acetate, benzyl isobutyrate, butyric acid, cinnamyl
isobutyrate, cinnamyl valerate, cognac essential oil, diacetyl,
dipropyl ketone, ethyl acetate, ethyl amylketone, ethyl butyrate,
ethyl cinnamate, ethyl heptanoate, ethyl heptylate, ethyl lactate,
ethyl methylphenylglycidate, ethyl nitrate, ethyl propionate, ethyl
valerate, heliotropin, hydroxyphenyl-2-butanone (10 percent
solution in alcohol),. . . isobutyl anthranilate, isobutyl butyrate,
lemon essential oil, maltol, 4-methylacetophenone, methyl
anthranilate, methyl benzoate, methyl cinnamate, methyl heptine
carbonate, methyl naphthyl ketone, methyl salicylate, mint
essential oil, neroli essential oil, nerolin, neryl isobutyrate, orris
butter, phenethyl alcohol, rose, rum ether, •-undecalactone,
163
vanillin, and solvent.
159
See supra notes 41-44 and accompanying text.
Joachim Zekoll, Liability for Defective Products and Services, 50 AM. J. COMP. L. 121,
124 (2002).
161
RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY § 2 (1998).
162
See SCHLOSSER, supra note 140, at 125-26.
163
Id. (citing FENAROLI’S HANDBOOK OF FLAVOR INGREDIENTS 831 (George A.
Burdock, Ph.D. ed., 4th ed. 2001)).
160
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While consumers may realize they are consuming a fattening food
product, they may not be aware that a “shake” contains a high
amount of unpronounceable additives and chemicals. Additionally,
the McDonald’s Corporation has refused to disclose the ingredients
164
of its French fries.
“The McDonald’s Corporation will not reveal
the exact origin of the natural flavor added to its French fries. In
response to inquiries from Vegetarian Journal, however, McDonald’s
did acknowledge that its fries derive some of their characteristic
165
flavor from ‘animal products.’”
Barber and other potential plaintiffs will face two hurdles when
suing fast food companies under a failure to warn theory. First, the
Food and Drug Administration generally “does not require flavor
companies to disclose the ingredients of their additives, so long as all
the chemicals are considered by the agency to be GRAS (generally
166
regarded as safe).”
Thus, flavor companies, such as those that
include additives in many of the fast food industry’s products, are
167
able to maintain a certain level of secrecy.
In order to overcome
this obstacle, plaintiffs’ attorneys must allege that any warnings the
168
fast food industry may post regarding its products are inadequate.
That is, these warnings fail to notify consumers of the dangers of
consuming fast food.
The second hurdle is not as formidable as it may seem. The
169
Federal Nutritional Labeling and Education Act
specifically
170
According to
exempts restaurants from posting food contents.
federal law, the following should be posted on food meant for human
consumption: “total fat, saturated fat, cholesterol, sodium, total
carbohydrates, complex carbohydrates, sugars, dietary fiber, and total
protein contained in each serving size or other unit of measure . . .
164
SCHLOSSER, supra note 140, at 128.
Id.; see also infra note 246.
166
SCHLOSSER, supra note 140, at 125.
167
Id.
168
See Edwards v. Basel Pharmaceuticals, 933 P.2d 298 (Okla. 1997). The court
held in pertinent part that:
[T]he manufacturer’s duty to warn the consumer is not necessarily
satisfied by compliance with FDA minimum warning requirements.
The required warnings must not be misleading, and must be adequate
to explain to the user the possible dangers associated with the product.
Whether that duty has been satisfied is governed by the common law of
the state, not the regulations of the FDA. . . .
Id. at 303; see also Hubbard-Hall Chem. Co. v. Silverman, 340 F.2d 402, 405 (1st Cir.
1965) (holding that since farm laborers are of limited education, mere compliance
with Department of Agriculture regulations was not enough to avoid liability).
169
21 U.S.C. § 343 (2000).
170
§ 343(q).
165
2004
COMMENT
1405
171
.”
Restaurants, however, are specifically exempted from this
172
This statute specifically states that
statutory requirement.
“[s]ubparagraphs (1), (2), (3), and (4) shall not apply to food (i)
which is served in restaurants or other establishments in which food is
served for immediate human consumption or which is sold for sale or use
173
in such establishments . . . .”
At least one court, however, has
reasoned that a pre-emption defense is unavailing if plaintiffs seek
174
relief under New York’s Consumer Fraud Statute. That court held
that “[s]ubsection 4 of the pre-emptive provision specifically permits
states to require nutrition labeling of food that is exempt under
175
subclause (i) or (ii) of 21 U.S.C. § 343 (q)(5)(A).”
D. Pelman v. McDonald’s Corp. (Pelman II)
Indeed, in Pelman II, the class action brought on behalf of obese
children, plaintiffs, in their amended complaint, plaintiffs sought
176
relief under the New York Consumer Protection Act.
The
complaint involved three counts.
First, plaintiffs alleged that
McDonald’s violated New York’s Consumer Protection Act through
misleading
“advertising
campaigns,”
citing
advertisements
proclaiming McDonald’s foods were of “a beneficial nutritional
177
nature.” Second, they alleged that McDonald’s failed to adequately
disclose that certain food products were less healthy than its publicity
178
campaigns represented. Third, plaintiffs claimed that McDonald’s
violated the Consumer Protection Act by “representing to the New
York Attorney General and to New York consumers that it provides
nutritional brochures and information” regarding the health content
179
of its food, when, in fact it did not.
McDonald’s countered these claims, alleging: (1) the statute of
limitations barred actions for alleged misrepresentations; (2)
plaintiffs failed to allege they actually observed those
misrepresentations; (3) plaintiffs did not prove the alleged
misrepresentations caused plaintiffs’ injury; and (4) the alleged
180
misrepresentations were either non-deceptive or puffery.
171
172
173
174
175
176
177
178
179
180
§ 343(q)(1)(D).
§ 343 (q)(5)(A)(i).
Id. (emphasis added).
Pelman I, 237 F. Supp. 2d at 526 (citing § 343-1(a)(4)).
Id.
Pelman II, 2003 WL 22052778, at *2.
Id.
Id.
Id.
Id. at *4.
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First, the court held that as a result of a 1980 settlement with the
New York Attorney General, the statute of limitations barred any
181
claim that McDonald’s advertising campaigns were never removed.
Plaintiffs argued that McDonald’s admitted through trial testimony in
182
David
the United Kingdom that it never ceased that campaign.
Green, Vice-President of Marketing for McDonald’s, testified that
following the attorney general’s investigation and settlement,
McDonald’s “‘continued the campaign for not only a number of
183
months but for a few years.’” The court held, however, that his “use
of the past tense that the campaign had ended by 1994, [was] well
outside of the statute of limitations period for a complaint filed in
184
2002.”
Furthermore, the court rejected plaintiffs’ argument that
the statute of limitations was tolled under either the “continuing
185
186
violations doctrine” or a “special accrual rule.” It held, however,
187
that the statute of limitations had not run for infant plaintiffs.
Next, the court held that the infants did not successfully state a
188
claim under New York’s Consumer Protection Act.
Plaintiffs cited
the Supreme Court of California in Committee on Children’s Television,
189
Inc. v. General Foods Corp., in an attempt to argue that “[a]llegations
of actual deception, reasonable reliance and damages are
190
unnecessary.”
The Pelman court rejected this argument stating
“[t]hat [the California] decision is based entirely on California . . .
181
Pelman II, 2003 WL 22052778, at *4.
Id. at *5.
183
Id. (citing Pelman II Am. Compl. ¶ 40 (No. 02 CV 7821)).
184
Id.
185
Cornwell v. Robinson, 23 F.3d 694 (2d Cir. 1994) (stating that “when a plaintiff
experiences a ‘continuous practice and policy of discrimination, . . . the
commencement of the statue of limitations may be delayed until the last
discriminatory act in furtherance of it’”) (emphasis added). The Pelman II court
held that the Second Circuit has “disfavored” such a test, and the test’s proper
context lies within employment discrimination cases. Pelman II, 2003 WL 22052778,
at *5.
186
Bingham v. Zolt, 66 F.3d 553, 559 (2d Cir. 1995) (reasoning that under this
rule, “a new claim accrues, triggering a new four-year limitations period, each time a
plaintiff discovers, or should have discovered, a new injury caused by the predicate
RICO violations”). The Pelman II court, however, held that plaintiffs failed to allege
any new injuries. Pelman II, 2003 WL 22052778, at * 5. Furthermore, additional
injuries that grow from an original injury do not satisfy this test. Id.
187
Pelman II, 2003 WL 22052778, at *6 (stating “McDonald’s has made no showing
as to why the statute of limitations should not be tolled as to the infant plaintiffs”).
188
Id. at *7.
189
673 P.2d 660 (Cal. 1983).
190
Pelman II, 2003 WL 22052778, at *7 n.4 (citing Children’s Television, 673 P.2d at
668).
182
2004
COMMENT
1407
191
law. The fact that California’s consumer protection statutes lack a
192
reliance requirement does not change the settled law in New York.”
The court held that New York’s Consumer Protection Act contains
such a requirement, and plaintiffs’ “vague allegations of reliance on a
‘long-term deceptive campaign’ are insufficient to fulfill the reliance
requirement of [section] 350 for otherwise unspecified
193
advertisements.” Furthermore, plaintiffs failed to demonstrate that
194
McDonald’s entire campaign was fraudulent.
195
Third, the court found that plaintiffs failed to prove causation.
Generally, cases brought under the Consumer Protection Act must
196
satisfy a less stringent standard of proximate causation. Though the
causation element is essential, Pelman I only required that the
plaintiffs show some injury as a result of the McDonald’s advertising
197
campaign. The purported class representatives specified how many
198
times they ate at McDonald’s; however, they did not address a host
of other relevant factors which may or may not have led to their
health problems such as other foods plaintiffs may have consumed,
plaintiffs’ amount of exercise, and any family history of diseases
199
McDonald’s products allegedly caused.
Finally, the court held the advertisements that plaintiffs cited in
200
their pleading were not inherently deceptive.
“In order to
191
Pelman II, 2003 WL at 22052778, at *7 n.3.
N.Y. GEN. BUS. LAW § 350 (Consol. 1999). “[F]alse advertising in the conduct
of any business, trade or commerce or in the furnishing of any service in this state is
hereby declared unlawful.” Id. The statute further defines false advertising as:
[A]dvertising, including labeling, which is misleading in a material
respect; and in determining whether any advertising is misleading,
there shall be taken into account (among other things) not only
representations made by statement, word, design, device, sound or any
combination thereof, but also the extent to which the advertising fails
to reveal facts material in the light of such representations with respect
to the commodity to which the advertising relates under the conditions
prescribed in said advertisement, or under such conditions as are
customary or usual.
Id.
193
Pelman II, 2003 WL 22052778, at *8 (internal citation omitted).
194
Id.
195
Id. at *9.
196
See generally Blue Cross & Blue Shield of N.J. v. Philip Morris, Inc., 178 F. Supp.
2d 198 (E.D.N.Y. 2001).
197
Pelman I, 237 F. Supp. 2d at 530 (emphasis added).
198
In their amended complaint, plaintiffs alleged Jazlyn Bradley “‘consumed
McDonald’s foods her entire life . . . during school lunch breaks and before and after
school, approximately five times per week, ordering two meals per day.’” Pelman II,
2003 WL 22052778, at *11 (quoting Pelman II Am. Compl., ¶ 17).
199
Pelman II, 2003 WL 22052778, at *11.
200
Id. at *12.
192
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demonstrate . . . that a practice or advertisement is deceptive or
misleading, it must be shown objectively that a reasonable consumer
201
would have been misled by the defendant’s conduct.”
The court
felt this test was not satisfied since the advertisements actually
contained the relevant saturated fat and cholesterol level of both
202
McDonald’s hash browns and Chicken McNuggets.
As such, the court granted McDonald’s motion to dismiss while
203
denying plaintiffs’ motion to amend a second time.
The court
reasoned that
[t]here is no indication that granting plaintiffs leave to amend a
second time would provide an opportunity to correct the failings
in the amended complaint. The plaintiffs have been warned that
they must make specific allegations about particular
advertisements that could have caused plaintiffs’ injuries, and to
provide detail on the alleged connection between those injuries
and the consumption of McDonald’s foods. They have failed to
remedy the defects of the initial complaint in the face of those
204
warnings. Granting leave to amend would therefore by futile.
E. The Obesity Epidemic
Despite the Pelman II court’s willingness to dismiss the latest
lawsuit against the fast food industry, there is no doubt that America
is in the midst of an obesity epidemic. In the 1990s, the United States
developed a heightened awareness of the growing number of
205
Americans dealing with health problems related to obesity.
On
average, Americans spend $238 billion per year on obesity-related
206
In addition, over 39 million Americans are
health problems.
207
considered “obese.”
A person is considered “obese” if his or her
208
body mass index [BMI] is 30.0 or above. In 1999, approximately 61
percent of adults in the United States were obese as well as 13
201
202
203
Id.
See id. at *13 (citing Pelman II Am. Compl., at Exhibit G-17).
Pelman II, 2003 WL 22052778, at *14; see also FED. R. CIV. P. 15(a), supra note
17.
204
Pelman II, 2003 WL 22052778, at *14.
See infra notes 209-10. Since 1991, the prevalence of obesity among U.S. adults
has increased 74 percent. Center for Disease Control, Obesity Trends: 1991-2001
Prevalence
of
Obesity
Among
U.S.
Adults
By
State,
available
at
www.cdc.gov/nccdphp/dnpa/obesity/ trend/prev_reg. htm (last visited Mar. 5,
2004) (on file with author).
206
New Study Finds Obesity Costs Over $200 Billion, PR NEWS WIRE, Sept. 14, 1999.
207
Id.
208
Id. “BMI is the ratio of person’s weight (in kilograms) to height (in meters
squared).” Id.
205
2004
COMMENT
1409
209
percent of children and adolescents.
As such, “[a]pproximately
300,000 deaths a year in this country are currently associated with
overweight and obesity. Left unabated, overweight and obesity may soon
210
cause as much preventable disease and death as cigarette smoking.”
The above statistics are part of a recent report issued by the
Surgeon General, David Satcher. Plaintiffs’ attorneys have used this
report to establish that obesity is an epidemic facing the American
211
populace.
Furthermore, they hope to show that the federal
government and local state governments are spending in excess of
$100 billion combined on the prevention of and care for diseases
212
related to obesity.
In response to this increasing epidemic, the
Surgeon General recommends nutritional information be made
available for foods that are prepared and consumed away from the
213
home. Finally, the Surgeon General places some of the burden of
214
preventing this epidemic on the food industry.
209
U.S. DEP’T. OF HEALTH & HUMAN SERV., THE SURGEON GENERAL’S CALL TO
ACTION TO PREVENT AND DECREASE OVERWEIGHT AND OBESITY XIII (2001).
210
Id. (emphasis added).
211
See, e.g., Barber Compl., supra note 10; see also supra note 209, at 10.
In 1995, the total (direct and indirect) costs attributable to obesity
amounted to an estimated $99 billion. In 2000, the total cost
attributable to obesity was estimated to be $117 billion ($61 billion
direct and $56 billion indirect). Most of the cost associated with
obesity is due to type 2 diabetes, coronary heart disease, and
hypertension.
Id.
212
See Barber Compl., supra note 10, at ¶ 24. A recent study by the Center for
Disease Control in Atlanta, GA reveals that individual states’ Medicare and Medicaid
costs are increasing.
State-level estimates range from $87 million (Wyoming) to $7.7 billion
(California). Obesity-attributable Medicare estimates range from $15
million (Wyoming) to $1.7 billion (California), and obesity-attributable
Medicaid expenditures range from $23 million (Wyoming) to $3.5
billion (New York). The state differences in obesity-attributable
expenditures are partly driven by the differences in the size of each
state’s population.
Center for Disease Control, Overweight and Obesity: Economic Consequences, available at
www.cdc.gov/nccdphp/dnpa/obesity/economic_consequences.htm (last visited
Mar. 5, 2004) (on file with author). New Jersey, alone, spends over $1 billion in
Medicare and Medicaid to treat diseases associated with obesity. Id.
213
See supra note 209, at 16-25.
214
Id. at 28.
Industry has a vital role in the prevention of overweight and obesity.
Through the production and distribution of food and other consumer
products, industry exerts a tremendous impact on the nutritional
quality of the food we eat and the extent of physical activity in which we
engage. Industry can use that leverage to create and sustain an
environment that encourages individuals to achieve and maintain a
healthy or healthier body weight.
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PART III—WILL THE TOBACCO LITIGATION AND
SETTLEMENT SERVE AS A MODEL FOR FAST FOOD
LITIGATION?
Thus far, the court has given two sets of instructions to plaintiffs’
215
attorneys attacking the fast food industry. In both cases, the court
requires more specific evidence of causation and reliance on
216
deceptive advertising.
The Big Tobacco litigation and settlement,
however, provide other avenues that the plaintiffs may be able to
pursue.
The common thread weaving the Big Tobacco settlement with
the current fast food litigation is plaintiffs’ attorneys using litigation
as a way to tame, if not destroy, an unpopular industry as well as
garner significant monetary awards for both plaintiffs and themselves.
There are, however, significant obstacles. First, although it is well
established that high-fat foods contribute to heart disease,
217
hypertension, and diabetes, there is no scientific evidence that fast
218
food itself is addictive.
Not only does this serve as a substantial
hurdle for Caesar Barber’s particular case, but would also almost
219
certainly bar class certification.
As the Barnes court instructed,
establishing addiction for these sorts of class actions is essential for
claims based on negligence, product liability, or intentional exposure
220
to a hazardous substance.
Furthermore, if the Big Tobacco
litigation serves as a model, it demonstrates that plaintiffs in the fast
food litigation must show that the industry caused their supposed
221
addiction to fast food.
Id.
215
See generally Pelman I, 237 F. Supp. 2d 512; Pelman II, 2003 WL 22052778.
Pelman II, 2003 WL 22052778, at *11.
217
See Must et al., supra note 22.
218
No authoritative study has been released establishing an addictive quality in
fast food. But see Jeremy Laurance, Fast Food is Addictive in Same Way as Drugs, Say
Scientists, THE INDEPENDENT, Jan. 30, 2003, (stating a Princeton University scientist fed
rats a diet containing 25 percent sugar, and those rats developed withdrawal
symptoms) available at http://www.independent.co.uk/story.jsp?story=373884 (last
visited Mar. 5, 2004) (on file with author). However, medical experts are in stark
disagreement over this issue. Id. In the case of Big Tobacco, the Surgeon General
stated that nicotine was addictive. See supra notes 90-91.
219
See supra notes 61-65 and accompanying text.
220
See Barnes, 161 F.3d at 143-44.
221
See supra notes 61-65 and accompanying text for a discussion of Barnes.
Plaintiffs could argue that the court should adopt the reasoning of Stubbs v. Rochester,
226 N.Y. 516 (1919). There, the court reasoned:
If two or more possible causes exist, for only one of which a defendant
may be liable, and a party injured establishes facts from which it can be
said with reasonable certainty that the direct cause of injury was the
216
2004
COMMENT
1411
Second, any class action must be narrowly tailored to those that
frequented fast food establishments. Despite the Pelman court’s
instruction, current class actions include those who could have eaten
222
at such restaurants only once in their lifetime.
As seen in the
Barnes, Engle, and Liggett, such broad classes have reportedly been
223
decertified.
224
Finally, there are a host of factors that contribute to obesity.
These include foods other than fast food, lack of exercise, and
225
heredity. In addition, plaintiffs attorneys, following the instructions
offered in Pelman II, should specify these facts in order to prove that,
under more relaxed standards of proximate cause under the New
York Consumer Protection Act, consuming fast food caused the
226
defendant’s health problems.
Since the Big Tobacco settlement, many attorneys general see
themselves as bridging the gap between regulatory agencies and
227
consumers.
There are several advantages to states’ attorneys
general leading the charge in an attack on any unpopular industry.
First, their involvement softens the corporate defense of assumption
228
of the risk. The states would serve as the innocent third party the
229
fast food industry injured through its actions.
Undoubtedly, the
adverse health affects have contributed significantly to state Medicare
230
and Medicaid costs. Examining the first complaint filed against the
fast food industry, plaintiffs’ attorneys may be attempting to recruit
231
This begs the
states’ attorneys general to join the fast food fight.
question: what is the likelihood states attorneys general will join? It is
one for which the defendant was liable the party has complied with the
spirit of the rule.
Id. at 526. Obesity, however, has many different sources. See supra note 208. In
short, the evidence has not developed to support the prevailing argument in Stubbs.
222
Pelman I, 237 F. Supp. 2d at 538.
223
See Barnes v. Am. Tobacco Co., 161 F.3d 127 (3d Cir. 1998); Engle v. R.J.
Reynolds Tobacco, 2000 WL 33534572 (Fla. Dist. Ct. App. Nov. 6, 2000), rev’d,
Liggett Group, Inc. v. Engle, 853 So. 2d 434 (Fla. 2003).
224
Aviva Must et al., The Disease Burden Associated With Overweight and Obesity, 282
JAMA 1523, 1528-29 (1999).
225
Id. at 1529.
226
See Pelman II, 2003 WL 22052778, at *11.
227
Richard L. Cupp, Jr., State Medical Reimbursement Lawsuits After Tobacco: Is the
Domino Effect for Lead Paint Manufacturers and Others Fair Game?, 27 PEPP. L. REV. 685,
688 (2000).
228
Id. at 689; see supra note 39.
229
Cupp, State Medical Reimbursement Lawsuits After Tobacco, 27 PEPP. L. REV. at 689;
see also Erichson supra note 81.
230
See supra note 212.
231
Barber Compl., supra note 10, at ¶ 1.
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difficult to speculate the answer to this question. It should be noted,
however, that obesity related diseases cost states comparable amounts
232
as diseases related to smoking. Furthermore, the amount of deaths
(approximately 400,000) that result from obesity each year is similar
233
to those that result from smoking.
Second, the causation element, which is sorely lacking in the
234
action against fast food companies, is not as strong a barrier. As
Professor Cupp explains, “[l]awsuits brought by states rather than
individuals may also allow for looser causation rulings, particularly
235
regarding the use of statistical evidence.”
The more statistical
evidence showing not only state costs incurred as a result of obesity,
but the link between fast food and adverse health effects, the greater
the possibility the causation requirement will be satisfied. Finally,
states attorneys general would facilitate the coordination of resources
236
against the industry. This approach is already underway in lawsuits
237
against other unpopular industries.
Plaintiffs’ attorneys attacking the fast food industry, alone, will
meet two inevitable obstacles. First, they must establish causation.
The difficulty here is that many factors contribute to heart disease,
238
diabetes, and other diseases that result from obesity. While studies
show that there is a clear link between obesity and health risks, the
causal link breaks when one is seeking the root of obesity. Studies
show that lack of exercise, among other things, is a common factor as
239
to why people become obese.
232
See supra note 212 and accompanying text. Tobacco related diseases cost states
approximately $100 billion in the early 1990s. Today, diseases related to obesity cost
states approximately $117 billion. Id.
233
Each year, approximately 400,000 Americans die from diseases associated with
tobacco use. Robert A. Levy, Estimating the Numbers of Smoking-Related Deaths, 284
JAMA 1319 (2000). Approximately 300,000 Americans die each year from diseases
related to obesity. See supra note 210 and accompanying text.
234
Cupp, supra note 227, at 689.
235
Id.
236
Id.
237
Id. at 690.
Governmental litigation against firearms manufacturers and lead paint
producers has already begun. Some of the industries discussed in the
media as additional potential post-tobacco targets include alcohol
producers, health insurers, prescription drug manufacturers, nursing
home operators, sweepstakes distributors, car rental companies,
gambling establishments, and fast food restaurants serving fatty foods.
Id. (emphasis added).
238
See supra note 209.
239
Id.; see also Must et al., supra note 223, at 1529. But see Center for Disease
Control, Obesity and Genetics: What We Know, What We Don’t Know and What it Means,
(indicating that obese individuals have genetic similarities, and individuals with a
2004
COMMENT
1413
Despite the lack of evidence establishing causation, plaintiffs
could allege that consuming fast food was a “substantial factor” in
causing their obesity. Under the “substantial factor” test, every
defendant who is a substantial factor in the alleged harm is treated as
240
a cause in fact. If plaintiffs fail to establish the requisite causation
for purposes of various states’ consumer protection statutes, they may
have some recourse under this theory. Plaintiffs could argue that,
while there are other causes of obesity, (such as hereditary traits, lack
of exercise, and other foods) consistent consumption of fast food was
a substantial factor in the plaintiffs’ obesity and related health
problems; thus, treating one, or all, of the fast food companies as the
cause in fact.
The second obstacle attorneys will find is whether the fast food
industry committed fraud against consumers. There is scant evidence
that suggests fast food companies knowingly and willfully encourage
241
consumers to absorb more calories.
None of that evidence,
however, rises to the level of fraud committed by the major American
242
tobacco companies.
States’ attorneys general may solve these
problems by presenting the state as an innocent third party since
states’ healthcare costs incurred in treating obesity and its associated
243
health problems are staggering.
In Pelman I, the court reasoned that a “necessary element of any
potentially viable claim must be that McDonald’s products involve a
danger that is not within the common knowledge of the
244
consumers.”
However, as noted above, a more important element
to any claim against a fast food giant is fraud. Excluding state
attorney general involvement, fraud was the crucial element in
245
winning the attack against Big Tobacco. The absence of fraud does
family history of obesity may be predisposed to gaining weight) available at
http://www.cdc.gov/genomics/oldWeb01_16_04/info/perspectives/files/obesknow
.htm. (last visited Mar. 5, 2004) (on file with author).
240
Cause in fact “requires the plaintiff to prove that the defendant’s conduct
caused legally recognized damages.” DAN B. DOBBS, THE LAW OF TORTS § 166 (2001).
The substantial factor test has often been explained utilizing the hypothetical of two
fires destroying the plaintiff’s property. See id. at § 171 (citing Anderson v.
Minneapolis, St. Paul & Sault Ste. Marie Ry. 179 N.W. 45 (Minn. 1920)). In that
hypothetical, if one fire was caused by lightening, and the other by the tortfeasor, the
judge could find that the tortfeasor liable for the resulting damages. Id.
241
See Fox, supra note 152; see also Micco, supra note 148 (indicating that the new
and improved products some fast food companies are offering, are still unhealthy if
eaten in large quantities).
242
See supra notes 92-116 and accompanying text.
243
See supra note 212 and accompanying text.
244
Pelman I, 237 F. Supp. 2d at 518.
245
See supra notes 92-119 and accompanying text.
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not completely foreclose plaintiffs’ odds of emerging victorious in
any future battle with fast food. Indeed, science may reveal that fast
246
food is addictive. Furthermore, whistleblowers may come forth and
reveal the inside operations of the industry. In light of Pelman,
however, it seems to be the “theory of last resort” for plaintiffs.
CONCLUSION
Analyzing the framework the Big Tobacco litigation and attorney
general settlement provides, as well as the merits of current claims
against fast food, it seems that absent state attorney general
involvement and/or allegations of fraud, these suits will be
247
dismissed. First, although there might be some evidence that the
fast food industry has injured the public, there still is a need for
248
whistle-blowers to show fraud on the part of the fast food industry.
As of yet, no corporate insiders have come forth to reveal what has
occurred behind the closed doors of the fast food industry. Such
249
insiders were essential to the success of the Big Tobacco settlement.
Second, the factors that barred class action certification in the
tobacco litigation—namely, causation and comparative and
contributory negligence—will most likely preclude class certification
in the current litigation. Such individualized issues will most likely
lead courts either to bar certification, or to de-certify on appeal class
actions against fast food companies. In addition, courts will most
likely consider whether allowing such class actions would lead to the
proverbial flood of unmeritorious claims. Finally, while the Big
Tobacco litigation and settlement offer an appropriate and helpful
background in analyzing future mass tort claims against unpopular
industries, it set forth no new law. There was no court ruling or
finality, absent the settlement. “If it changes anything, it’s going to
make plaintiff’s attorneys more willing to take chances and be more
innovative in the approaches that they take in lawsuits. But this was a
250
settlement. It did not make any law.”
Even if fast food lawsuits are continually dismissed, the litigation
246
See supra note 218.
See Pelman I, 237 F. Supp. 2d 512; Pelman II, 2003 WL 22052778.
248
George Washington Law Professor, John Banzhaf, and his students recently
received a 12.1 million dollar settlement from McDonald’s for mislabeling its French
fries as vegetarian when in fact they were prepared in beef extract. As part of the
settlement, McDonald’s offered an apology. John W. Schoen, McDonald’s to Offer
Lower-Fat Fries, at http://www.msnbc.com/news/802676.asp (last visited Mar. 5,
2004) (on file with author); see also supra notes 96-116.
249
See supra notes 96-116 and accompanying text.
250
Panel Discussion, supra note 85, at 869.
247
2004
COMMENT
1415
against the fast food industry will not disappear. If the Big Tobacco
war demonstrated anything, it was the resolve of the plaintiffs’ bar to
attack industries that injure American consumers. Even now, some in
the fast food industry have altered its business practices by offering
healthier foods such as the all white meat McNugget, terminating its
“super size” policy, and promoting healthier foods such as salads and
pizza with less amounts of cheese. Thus, some may argue, these
lawsuits have some value.
Eventually, corporate insiders may come forth and reveal what is
inside the franchises of fast food. Such revelations are dependent on
the number of claims filed, and the number of Americans inflicted
with diseases related to obesity that lead to death. As these statistics
rise, more pressure is placed on the industry and states’ attorneys
general to bring suit on behalf of American consumers. But until
then, most of these suits will be dismissed in the courts of law and
public opinion.